Obama Administration Says It Can Spy On Americans, But Can't Tell You What Law Allows It

from the secret-laws! dept

Remember how President Obama, while campaigning, promised to reject the questionable spying practices of the federal government of President Bush? Yeah, forget all that. Over the past two years, we've seen time and time again that he's actually extended those abuses even further. The latest to come out is that the Justice Department is now claiming that the FBI has the right to get phone records on any call made from inside the US to an international numberwithout any oversight. You may recall a few years back that there was a similar controversy, when it came out that the FBI would regularly just call up phone companies and ask for records -- despite the fact that this violates certain laws designed to protect consumer privacy. Sometimes, they would just use post-it notes.

Apparently, a year ago, McClatchy newspapers put in a FOIA request, asking for the details of a particular Office of Legal Counsel (OLC) memo that was mentioned in the (previously released, but highly redacted) report that showed how frequently the FBI abused the law in this manner. The OLC took its sweet time responding, but finally responded, and in the cover letter admitted that the Obama administration believes it is perfectly legal for the FBI to route around the in-place oversight for getting access to such records and claimed that the law said so.

Which law says so? Oh, see, that they can't say. Yes, the part of the letter that explains which law lets the FBI get these records without oversight was redacted.

It's a secret law! And here I thought, in the US, if the government was going to base actions on a particular law, at the very least, they were supposed to tell you what law. Apparently, the Justice Department under the Obama administration does not believe that to be the case.

Basically, what this means is that the federal government believes that it's free to request information without first getting court approval -- and without telling the public what law says they're allowed to get this information. That's not what the laws on the books seem to say at all. But, of course, big telcos such as AT&T, who are so closely tied to the government, are going to roll over and give the government such info (or, perhaps, give them direct access to the info), even if it violates other laws. Why do you think President Obama voted to support giving telcos retroactive immunity on this issue, while he was running for President despite having earlier said he was against it? Now that he's in power, he apparently is perfectly happy to let the FBI twist the clear intentions of the law to spy on Americans without oversight, and then to refuse to reveal what law he's relying on to make such spying on Americans without oversight legal.

McClatchy quotes Michael German, a former FBI agent, who now works for the ACLU pointing out the obvious:

"It's wrong that they're withholding a legal rationale that has to do with the authorities of the FBI to collect information that affects the rights of American citizens here and abroad.... The law should never be secret. We should all understand what rules we're operating under and particularly when it comes to an agency that has a long history of abuse in its collection activities."

And so far, it doesn't seem like most people care. About the only politician who really seems concerned about this is Senator Wyden, who says this level of secrecy "is a serious problem" and he's "continuing to press the executive branch to disclose more information to the public about what their government thinks the law means." Once again, kudos to Senator Wyden for being one of a very small number of politicians who seems to consistently be concerned about the rights of individuals. But it's sad that the rest of our elected officials aren't up in arms about this. The government shouldn't be spying on Americans, and if it is, it should at least have to tell Americans what law it's basing that decision on.

Reader Comments

This just shows...

that people are just plain now aware that each party is all about power. Each in their own way. Dem: "I will control you through your health care" Rep: " I will control you through fear of the great ENEMY"

Each just wants to make sure the have complete control and keep it long enough to get rid of those suggestions that they do right.

Although I've also put it up as a free download elsewhere, so don't consider that the only source. I'm actually stunned that more people don't know the history of that program and the way the govt. basically just gave the people that caused it to be "banished" the middle finger....

Re: No fan of the Bush years

This is exactly why we are in the situation unfortunately. Everyones too wrapped up in their supposedly differnt ideologies to see that they are two sides of the same coin. Heads They win tails you lose.

Re:

We should all go to jail.

The government doesn't want everyone in jail; just the ones that annoy them. But the government can't just lock up people it doesn't like, since there would be public outrage. The public, however, is usually fine with locking up criminals.

So the solution is to just to turn everybody into a criminal. Then, if you only selectively prosecute the ones who annoy you, you can avoid backlash, since the attitude of the public is generally a completely lack of empathy or foresight ("Well, if he didn't want to go to prison, he shouldn't have worn polka-dots on Sunday. Duh. There's a law. You can't just ignore the law. Ignorance is no excuse!")

Re: Ignorance...

Gilmore v. Gonzales again

The US government has been claiming the right to apply secret laws to you at least since shortly after Sept. 11, 2001. Sadly, the 9th Circuit Court of Appeals has said this is perfectly OK, and the Supreme Court refused to hear the case. See

Re: Re: Facist State?

The solution

As much as I'd like to think the solution is to change the government, I don't actually believe that is a realistic goal. It's worth trying, but I just don't think it will happen.

Thankfully we are at a somewhat unique moment in history in which individual citizens are capable of far more than ever before. I suspect we'll see a day where all our communications/data are fully end to end encrypted long before these (non)laws are fixed. The change will be slow at first, but I suspect it will become simple enough that adoption will be simple and widespread.

And the arms race of personal power vs. government/corporation power is just starting to come closer to balance. I hope to see that balance shift in favor of personal power in my lifetime.

Re: The solution

adoption of end to end encryption has been slow going because so few people are dissidents. however, a great many of them are file sharers, which this particular administration seems to have taken aim at.

I hope to see that balance shift in favor of personal power in my lifetime.

action is cheaper than control. it's just so much easier to think stuff up and do it than it is for a central authority to keep individual actions under control.

Don't Care or Afraid?

Really guys?

Ok... so I understand the desire for privacy and that violations of that privacy are taken seriously as they should be, but honestly people... if you're not doing something illegal then "WHY THE HELL DO YOU CARE?"
With everything that has been going on WITHIN the United States, home grown terrorists, bombing plots, etc. the fact that our federal government is taking action to protect us isn't a bad thing... and again, if you're not doing something you shouldn't be doing "WHY DO YOU CARE?" The complaints made by overly concerned individuals do nothing to help us from a homeland security point of view... all they do is give potential terrorists more wiggle room to conduct terrorist activities. And guess what people, they don't even have to break any laws cause the current laws protect them!
So who cares if the FBI is pulling phone records? Who cares if certain things are kept private... it's not in an attempt to deny information, but to protect it. There is a thing called probable cause and if they feel there is a need, please by all means, for my safety, for my families safety, and for every other law abiding citizen out there, have at it.

And so it goes that Obama learned from the legacy of Nixon. Only this time, he had the backing of those in Congress and the Judicial Branch to ensure that the security of our personal freedoms continues to be desecrated in the name of national security.

Re: Really guys?

Why do I care? A complete lack of due process, that's why. They don't get warrants, they have no oversight, they don't justify their actions in any way whatsoever.
If they were actually trying to protect people, actually trying to fight terrorism, they'd actually get warrants and whatnot before acting. The fact that they want to do this stuff without anyone knowing the particulars means that fighting terrorism is just a facade, and their actual motives are something they don't want publicly known.

Re: Typo?

Re: Really guys?

Ok... so I understand the desire for privacy and that violations of that privacy are taken seriously as they should be, but honestly people... if you're not doing something illegal then "WHY THE HELL DO YOU CARE?"

Recent study suggested the average American commits *three felonies per day*.

If someone wants to put you in jail, it's not that hard. While you say there's no problem if you're not doing anything illegal, the problem is you almost certainly are doing something illegal, and just don't realize it.

There is a thing called probable cause and if they feel there is a need, please by all means, for my safety, for my families safety, and for every other law abiding citizen out there, have at it.

Yes, there is a thing called probable cause, and probable cause will get you a warrant. The whole problem here is that they did not get a warrant, so they did not show probable cause to get the information. Why not? Perhaps because they didn't have probable cause...

Re: Really guys?

Re: Really guys?

I'm sure that you posted with the best of thought and intentions, but people do have a right to care when the system is broke, and let's face it, it's broke.
Following the laws put in place to protect our freedoms shouldn't be a matter of inconvenience for those sworn to protect those freedoms. And people do have the right to care when personal privacies are violated in the name of “homeland security” regardless of legal or illegal activity. It is our right as established by our founding fathers; and when those rights are violated, it is our right to voice our objections and demand that justice is served.

…That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.
-The Declaration of Independence

Come election day...

...will you vote for the best candidate or will you vote to make sure the "other guy" doesn't win? These "other guy" voters are why we are in this mess. Dems and Repubs suck and everyone knows it and nobody stops voting for the clowns. Way to go America.

Re:

With DH and others writing prose last week and now you today, it makes me wonder if we need have a reformat of this site in the spirit of Cop Rock, where we all spontaneously break out into show tune style song and dance numbers a couple of times every article.

Re: Ignorance...

they need..

no law to authorize it anyway; they will simply go ahead and do whatever they want. The courts will not interfere because they feel it is perfectly acceptable behavior. Besides, any judge daring to cross the DOJ is asking for a one way ticket to Gitmo; smart judges know that if they want to stay healthy they allow whatever the government wants.

It's not a question of Republicans or Democrats; they are both equally corrupt and voting for one or the other is NOT going to stop government spying and intimidation of anyone they don't like.

Re: Re: Re: Really guys?

The best I could find with a quick google was a link to a book called Three Felonies a Day: How the Feds Target the Innocent found here: http://www.amazon.com/exec/obidos/ASIN/1594032556/reasonmagazineA/ . It was an estimate made by the author. It doesn't sound like a study that would hold up to peer review was done to make the point. It sounds like his main focus is Internet-related felonies due to the mass of new internet-based laws.

Re: Really guys?

"if you're not doing something illegal then "WHY THE HELL DO YOU CARE?""

"and again, if you're not doing something you shouldn't be doing "WHY DO YOU CARE?""

It seems that you are trying to make a point here. If it were a perfect world then you would have a very valid point. The problem is this is not a Utopian society. The government is made up of and run by people (who are not perfect). Back in junior high they taught us a saying..."Absolute power corrupts absolutely". That is why we have a constitution as we do. It was set up that way to prevent this from happening. Just because something is "legal" today doesnt mean it wont be "illegal" tomorrow (or vise-versa). Back in the day, if the government (king) was suspicious of you he would park a few soldiers (government agents) in your living room to keep an eye on you. This is now prohibited by the constitution for obvious reasons.

The point of this should not be "if you are not doing something wrong you dont need to fear the gov. but whats the difference between agent in your living room and an agent (actively) monitoring your communications. Be it verbal, written, electronic, or other.

Re: Really guys?

I agree with you. The report says "calls from the US to an International number". It doesn't say they can do whatever they want. Can you say PARANOID???? Oh, i can hear you now, "if we let them watch international calls, than before long they will have a camera in my bathroom"

Put it another way. If the FBI calls up the judge and says "We have a suspected terrorist and we want to watch his international calls, can we have a warrant" Judge - "sure" 100% of the time. So, what is this report actually saying? We have sped up the process which will save tax payers money.

Re: Re: Really guys?

Put it another way. If the FBI calls up the judge and says "We have a suspected terrorist and we want to watch his international calls, can we have a warrant" Judge - "sure" 100% of the time. So, what is this report actually saying? We have sped up the process which will save tax payers money.

Right. Speed up the process by bypassing that whole pesky warrant and judge thing. You know, that part that is due process. That whole Constitutionally protected part.

Bypassing that part of the process is not worth any amount of savings.

Re: Re: Re: Really guys?

Another way to save money. No judge, no trial, no investigation, and no prison. Since its for our own safety, If someone is suspected, then just shoot them. Lead is cheaper you know, not to mention the environmental benefits.

Re: Really guys?

"Ok... so I understand the desire for privacy and that violations of that privacy are taken seriously as they should be, but honestly people... if you're not doing something illegal then "WHY THE HELL DO YOU CARE?""

You know that law that you're not supposed to know what it is? Guess what, you just broke it, buddy. That's right, you're a felon, and now you're going to jail.

Try to weasel out of this one. Go ahead, I dare you, show us that you didn't break that law.

Re:

Re: Re: Really guys?

The report says "calls from the US to an International number". It doesn't say they can do whatever they want.

Here's the scenario:

Citizen: Can you give us the details about this activity?
Govt: Sure, here's all the details we feel like giving you.
Citizen: This doesn't say what law allows you to do this.
Govt: No comment.

What is so special about wiretapping that it works there, and not for something else? Arrests and imprisonment for example. Censorship. Property seizure. Why do you think they'll violate the 4th amendment without any justification, but just stop there?

The Communications Assistance for Law Enforcement Act (CALEA) is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton (Pub. L. No. 103-414, 108 Stat. 4279, codified at 47 USC 1001-1010). In its own words, the purpose of CALEA is:

CALEA was passed into law on October 25, 1994 and came into force on January 1, 1995.

In the years since CALEA was passed it has been greatly expanded to include all VoIP and broadband internet traffic. From 2004 to 2007 there was a 62 percent growth in the number of wiretaps performed under CALEA -- and more than 3,000 percent growth in interception of internet data such as email.

Re: Only dishonest politicians would object to a death penalty for corruption!

Got to disagree with you on all of those, really. There are legitimate reasons for some few secrets. Police are not on duty 24/7, so should not be under surveillance all the time. And there are many reasons to object to the death penalty for any crime, let alone corruption.

Re: Really guys?

Why do I care about this? Well probably because I don't know if I'm breaking the law or not if the law is secret. Laws are not supposed to be secret and if we let the government do this then the terrorists have won.

Re: Re:

I was just writing a sort of dark satire of one of those annoying patriotic US songs that sets my teeth on edge. Thought I'd make it more accurate, as it were. More descriptive of our current reality. Maybe I'll twist the Star-Spangled Banner next, I don't know.

Re: Really guys?

Above all else because democracy and the Rule of Law matter. Our government is not supposed to have this power. Based on their experiences our founders thought it was a bad idea. We cannot allow a precedent in which government can spy on anyone based on undisclosed, secret laws. Especially when they are also doing the same thing with the terrorist kill list, claiming American citizens and others have broken unknown laws, without proof, and then putting execution orders on them (i.e. Anwar al-Awlaki). Don't know if he is a terrorist or not, but he deserves to have a right to prove his innocence in court like any other American.

Why does it matter, if you aren't doing anything wrong? Well, only if you aren't doing anything wrong in the eyes of the current politicians in power. Is organizing a third party wrong? Is alternative, non-corporate media wrong? Was the civil right movement wrong? To a corporate bribed politician of one of the establishment parties - read 95% of Congress - it might seem wrong. Especially, if you can claim it as wrong in secret, and not face public scrutiny for it.

Again, this is the reason for the Rule of Law, and Limited Government. To avoid these kinds of abuses. And it is not merely speculative either. That's why other posters brought up COINTELPRO, look it up. The government spied on Martin Luther King, John Lennon, the Black Panthers and others. Nixon spied on his political rivals. If his rivals had not been the other establishment party, think he would have been caught? Under the current spying program authorized by Bush, we know at the very least in Maryland that anti-death penalty and anti-war activists were targeted for spying and put on terrorist watch lists. Again, don't believe me, look it up.

Some discount spying, because it is only listening, not action. But information is power. It allows governments to get inside information on groups, and use that to try to attack them or discredit them publicly. In the case of the Black Panthers it was used to insert plants in the group and spread misinformation to promote dissent and distrust within the group, fostering its breakdown. Might not be a group u like, but does this seem an appropriate way for a government to deal with a group it doesn't like, before they had been convicted of wrong doing?

We also must consider the chilling effect on free speech. Knowing any of their communications can be tapped, will people feel free to speak out against their government, to try to organize, peacefully and lawfully to change it? Could government agencies not single out communities, companies, political groups, Internet forum users, etc. for retaliation (dump government contracts, redirect government projects, release embarrassing or compromising info, reveal identities of internet authors using pen names - often used because of worry of negative reactions from employers) based on learning people's identities through spying? The list of potential abuses go on, as do the examples where known abuses have already happened.

This "why should you be concerned about privacy if your not a terrorist" reasoning is EXTREMELY dangerous. The greatest threat to our democracy is and always has been from our own government, not any foreign country or terrorist group. Sell out our freedom and what exactly are we defending from the terrorists anyways? The American government? The institution of the State? Our armed forces and political leaders do not take an oath to defend the State or the powers of government, but to uphold the Constitution.

And yes, civil liberties might make it harder for law enforcement to do its job at times. That's part of the trade off of living in a free country. You can't limit the ability of government to abuse power, without to some degree limiting its ability to use power properly. And in the long run, no matter how successful it may allow the authorities to be in thwarting terrorists, eroding our liberties in the long run will not make us safer from violence, it will expose us to much more. Either through violent repression, violent revolt, or any mix of the two.

Re: Re: Only dishonest politicians would object to a death penalty for corruption!

As public servants enshrined with extraordinary powers, police should be under video surveillance at all times while on duty, but certainly not while off duty as private citizens. It would vastly reduce corruption, and allow the police to do a better job by building trust with the community as their behavior improves and abuses are punished. Hell, private companies can watch their employees just to make sure they don't get on facebook on the clock. But we can't watch police to make sure they don't shoot people without cause, recklessly endanger the public, incite violence, plant evidence, commit brutality, etc. ?

Currently government demands privacy for itself and transparency from the people. That needs to be flipped around. Public institutions should be transparent, private institutions and citizens, should have privacy. Isn't that the whole idea of public vs private in the first place? Shared vs. personal, whether as property or information.

Re: Re: Re: Really guys?

@Gwiz:

The point is that this "due process" only matters if there's any 'process' worth discussing.

Before this law, it was already routine to rubber-stamp any request without scrutinizing it in the least; approving every single request without ensuring that they're valid and applicable isn't "process" in any meaningful sense of the word.

In other words, there has been absolutely no due process for years... so this whole "outrage over a lack of due process" thing is pointless and hypocritical, because we had already allowed a de facto dissolution of due process by allowing the rubber stamp "due process" to happen in the first place.

Put another way, this outrage is completely toothless because we let the change which really mattered -- that is, the change from "scrutinizing requests" to "not scrutinizing requests" occur years ago, and we're just objecting to a minor formality: enshrining into law what was already common practice.

Re: Re: Re: Re: Really guys?

That's a very good point. However, if we let them completely skip the due process and have that be our accepted practice, it will be very difficult to ever get any meaningful process in place again. With the poorly implemented rubber stamp process we have now, there's at least an evident path toward true due process. I admit it doesn't seem likely to get fixed any time soon, but still more likely than if there were no process at all (IMO).

DOUBLECLICK AND MRS DASH THE WALMART SERIAL KILLERS

Joan Wagar is a confessed poisoner of a plasma donor and Portland authority's WANT Joan Wagar to get away with it!

Joan Wagar was having an affair with Eric Carlson and Eric Carlson's relatives in law enforcement gave Joan Wagar permission to poison her husband to death!

Ever since I caught them in the act on a audio recorder they all brag on audio death threats!

Eric Carlson and Joan Wagar recruited co-workers at Clackamas Walmart to lie for them and the store agreed to hide Eric Carlson's employment there to hide their motive!

Authority's covered up the poisonings at the OHSU hospital by labeling the victim Terry Wagar a bad guy repeatedly to his doctor until the doctor got the hint to shut up about him being poisoned!

Terry Wagar was a plasma donor he donated twice a week at ZLB plasma center in Portland Oregon!

My whole family was recruited into Joan Wagar's and Eric Carlson's murder conspiracy and they actively lie for Joan Wagar and Eric Carlson!

My family tries to hide Eric Carlson by calling him by alias's, last known alias Eric Carlson used is Gashel!

Several family members have died suspiciously after Joan Wagar and Eric Carlson started their affair and Eric Carlson's relatives in law enforcement had my entire family under illegal video surveillance within our own homes at the time!

I am badly disabled from being repeatedly poisoned and no one cares, authority's cover it up when it's reported and on my last visit to the hospital they did not even bother to examine me let alone treat me for being poisoned.

I have received more than one audio death threat placed in my home and the people that put it there were renting the apartment above me at the time.
I caught them on video backing up their last death threat on my camcorder, but there is no one to report it to that cares!

Re: Re: Re: Re: Really guys?

Put another way, this outrage is completely toothless because we let the change which really mattered -- that is, the change from "scrutinizing requests" to "not scrutinizing requests" occur years ago, and we're just objecting to a minor formality: enshrining into law what was already common practice.

I will concede that my outrage is probably toothless to some degree because yes, we have let the change you described happen.

I have been concerned about asset seizure laws since the 80's and 90's when I watched a lot of police departments using the laws as fundraisers. The requirements were revised from "probable cause" to "a preponderance of the evidence" and that seemed help.

Due to the fact that the domain name seizures involve websites and the fact that websites are considered speech seems to indicate that these should have had much more scrutiny then what is considered the norm.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

That's perfectly described in Atlas Shrugged: make the law that is impossible not to break, and rule the "criminals" through, what Ayn Rand calls Santion of the Victim - our consent to the offentdors to fight us with our own virtues which we voluntarily surrender to the oppressors. She was genious.

Re: This just shows...

The only ones that are interested in controlling us is those with a 'progressive' agenda. They are in both parties. Thzt was part of the problem with the last presidential election. You had Obama who is progressive on steroids or 'c_ain who was progressive lite.

Re: Really guys?

You obviously haven't read the patriot act; nor have you read the drafts of the original patriot act where they tried to suspend habeas corpes which means you get jailed with or without being a suspicion indefinitely just because they say so.

We care; not because of our doing something wrong, but because these are our rights that are being stripped from us one by one. There is a time to understand that knowledge of what is happening is much better than an empty promise coated in sugar to make you feel better about you in your home.

There never was extremely high factors of terrorist activities going on to the degree that is said to be. Even one of the generals was willing to treat civilian areas with civilians exercising their rights as a battlefield ruling of what effects need be taken.

Re: Re: Really guys?

If only that were the only thing they were after, that is only a part of the violation being told. Read the whole fact before trying to prove your point. Half of the matter is what is misleading and creates people to think oh, this isn't a bad idea," in the first place. Hopefully you don't end up voting for something under a half view and realize later you just stripped yourself of rights to even speak aloud and no way to appeal an announced decision on your status.

Article link to replace dead MiamiHerald one that is dead

Government Transparency Must Be Inacted.

Simply put, we need government transparency. This should be mandated at every level, local, state & government. Secrets should be kept but only in very specific scenarios and it should be *KNOWN* that it's one of those "situations."

I'm going to college for politics after this tour through my G.I. bill and I will be all for transparency no matter who talks to me.